Tuesday, May 25, 2010

The Code of Judicial Conduct in Wisconsin is designed to provide guidance to judges so they will "respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system." (SCR 60 Preamble) When people come to court they expect that they will be treated fairly by the judge. They expect that their case will be judged and decided on its merits and not on outside influences, particularly political influences. In order to promote these precepts, the Code has provisions addressing political activity by judges.

SCR 60.06(2)(b)1 prohibits a judge from being a member of any political party.

SCR 60.06(2)(b)2 prohibits a judge from participating in the activities of a political party or candidate for partisan office.

SCR 60.06(2)(b)3 prohibits a judge from making or soliciting financial contributions for a political party or candidate.

SCR 60.06(2)(b)4 prohibits a judge from endorsing a political party's candidate or platform.

SCR 60.06(2)(d) and (e) allow a judge to attend a political party event as a member of the public and allow attend partisan political gatherings to promote his/her own candidacy.

SCR 60.06(4) allows a judge to establish a committee to solicit and accept lawful campaign contributions and the judge may serve on the committee although the judge must avoid direct involvement with the committee's fundraising efforts.

These provisions were enacted to extract a judge from partisan politics; to put a judge above the fray; to assure the public and litigants that the facts and the law, not political influences and biases, will rule the day in court. However, these provisions do put limits on a judge's First Amendment right to free expression. Therein lies a problem for some judges. This "clash" between the Code and the First Amendment has resulted in litigation. In litigation, the above Code provisions has been forced to give way to the First Amendment.

In 2008, Milwaukee County Circuit Court Judge John Seifert commenced a lawsuit against the Executive Director and Members of the Wisconsin Judicial Commission to enjoin them from enforcing provisions of SCR 60.06 against him. In Seifert v. Alexander, he sought a Declaratory Judgment that the prohibitions against a judge being a member of a political party, against a judge speaking on behalf of a political party's candidate or platform and against a judge personally soliciting or accept campaign contributions were unconstitutional and that the Commission be enjoined from enforcing these rules. He relied heavily on the 2002 United States Supreme Court decision in Republican Party of Minnesota v. White as well as the subsequent 2005 Eighth Circuit Court of Appeals decision in that same case. He claimed that the above code provisions violated his right to free speech. The Commission defendants contended that the rules were necessary to keep judges from being improperly influenced by partisan considerations, to maintain public confidence in the Wisconsin judiciary and to prevent potential donors from feeling coerced into giving money. In a lengthy decision, Judge Barbara Crabb declared that the above rules [SCR 60.06(2)(b)1, 60.06(2)(b)4 and 60.06(4)] were unconstitutional because they violated the First Amendment and she enjoined the Commission defendants from enforcing the rules against Judge Seifert. The Commission defendants have appealed this decision to the Seventh Circuit Court of Appeals.

As a member of the Wisconsin judiciary for the past 20 years, I have been guided by the Code - particularly the provisions at issue in the Seifert v. Alexander case. While I cherish the First Amendment, I do not mind the restrictions that the Code imposes on me. I accept those restrictions because I believe that the public's perception of a judge's independence and impartiality is critical to the confidence the public has in the judiciary. I believe that if judges immerse themselves in partisan politics it will severely dilute their independence and the public's confidence in the judiciary; and without the public's confidence, the judiciary cannot be effective.

Friday, May 21, 2010

In everything that a judge does, he/she is subject to all of the provisions of the Judicial Code. It does not matter if it is in court or out of court, a judge is always subject to public and judicial commission scrutiny.

SCR 60.03 sets forth the general principle that "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." This is a broad charter that every judge must regard at all times. In SCR 60.03(1), it states: "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." It cannot be stated with more clarity -- a judge must accept restrictions on his/her conduct. This includes both the professional and personal conduct of a judge. If a judge is with a group of people who decide to get "wild and crazy", the judge must back off and not participate.

So, how far must this provision be taken? Is it limited to violations of criminal law or municipal law or does it encompass more? In the comments, it is made clear that actual improprieties include violations of all law, all court rules or other specific provisions of Chapter SCR 60. In terms of a test for the appearance of impropriety, the comments set forth that it is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

The best, practical tests to apply to what a judge should or should not do are twofold. The first test is the "smell test." If it doesn't smell right, don't do it. The second test is the "Headline" test. In other words, would you want the conduct to be the top headline in your local newspaper. If you would not feel comfortable reading about the conduct, it would be wise to avoid the conduct.

Having been on the bench for almost twenty years, I do not find this provision to be onerous. I do not find that it deprives me of any fundamental freedoms enjoyed by all other people. It is a reasonable conduct standard. A judge should never engage in conduct that will demean the judge or the office. Respect for the office and confidence in the officer is critical to the effective operation of the judiciary and the delivery of justice.

Monday, May 17, 2010

If there is one thing lawyers (and this includes judges) love to do, it is to talk. It does not matter what the subject, legal or nonlegal, we love to talk. We are never at a loss for an opinion. However, when it comes to specific cases, while lawyers are free to discuss their cases with anyone, at any time, the same does not hold true for judges. In Wisconsin, under Supreme Court Rule (SCR) 60.04(1)(g), judges may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding except in some very limited circumstances. Herein lies the problem for a judge when he/she has a high profile case which has garnered the attention of the media and the public. Anything the judge has to say must be said in open court, on the record with all parties and lawyers present. Once the case is no longer before the court on the record in the courtroom, the judge is prohibited from commenting on it or answering any questions about it.

The prohibition on a judge talking about cases pending before him/her is not well understood by the media or the public. When a judge is asked questions about a decision he/she made, the judge must decline to answer. This is often interpreted by the public as arrogance on the part of the judge or is viewed as a tacit admission by the judge that he/she committed error or has something to hide. In high profile cases, the judge may be roundly criticized and attacked, yet the judge must silently "take it." The judge may not defend himself/herself without violating the Code of Judicial Conduct provision against ex parte communications.

An example of this dilemma can be found in a criminal case. A judge may have a parent who has neglected or abused one of his/her children before the court for sentencing. If the judge places the defendant on probation and this fact is reported by the media, the report usually does not give the judges rationale, rather just "vivid" details of the offense and the "light" sentence. If there is a public outcry against the sentence, the judge cannot publicly defend himself/herself. The judge cannot give a further explanation. The judge can release the transcript, but that usually is unacceptable to the media and the public. They want more but the judge cannot give them more.

There are some who say that this prohibition actually fosters lack of confidence in the judicial office as a public trust. That is, if a judge will not answer questions about a decision he/she made when asked by the media or the public, he/she is violating the public trust. However, just the opposite is true. A judge makes decisions based on the facts and the law. A judge explains decisions on the record where the lawyers can respond. The rationale is in the record. A judge must do his/her talking in the courtroom setting. The courtroom is the public forum for a judge. All judges realize that in this day and age where the media has limited time and is looking for catchy "sound bites;" where people want information immediately without having to wait or wade through a transcript, the above procedure is not embraced by the public. However, the integrity of the judicial process demands that judges not engage in ex parte communications.

Thursday, May 13, 2010

I am now back from a brief vacation that my wife, Judge Jean DiMotto, and I took to Brussels, Belgium. It was nice to get away and see a different part of the world. It was like a trip back in time. Very enjoyable and rewarding.

Now that I am back, I have decided to do a series on The Code of Judicial Conduct that governs both the "on the bench" and "off the bench" conduct of judges in Wisconsin. Every state has its own Code and provisions do vary from state to state. My focus will be on the Wisconsin Code since it governs my life 24/7.

1) The judiciary which must interpret and apply the laws that govern people and it must do so in an independent, fair and competent manner.

2) The role of the judiciary is central to the concepts of justice and the rule of law.

3) Judges must individually and collectively respect and honor the judicial office as a public trust.

4) Judges are the arbiters of facts and law for the resolution of disputes.

5) Judges are a highly visible symbol of government under the rule of law.

In order to facilitate these propositions, the Code provisions provide:

1) Guidance to judges as to their behavior.

2) Govern the conduct of judges and are binding upon judges.

The ultimate purpose of the Code is to enhance public confidence in the integrity, independence and impartiality of the judiciary.

These are not mere platitudes to make people feel good. These are important propositions to ensure that it is the rule of law and not the vagaries of men/women which govern our lives.

The judiciary is the "Third Branch" of government. It is independent of the First and Second Branches -- the legislative and executive branches -- not an appendage of them. In order to remain so, the judiciary must be separate from politics and the political process. It must be an "uber-referee." As I explain to students who come through the courthouse, in some ways what judges do is analogous to what umpires and referees do in sporting events.

1) Referees and umpires do not "play" the game rather they enforce the rules of the game to ensure that the game is played fairly. Judges do this in the courtroom when they enforce the rules of evidence or procedure.

2) Referees and umpires make judgment calls as to whether "fouls" are committed or whether a pitch was a ball or a strike or whether a catch was made in or out of bounds or whether a basket was a two or three point shot. Judges similarly make judgment calls when they decide whether a question may or may not be asked or whether certain evidence will or will not be admissible.

3) Referees and umpires interpret whether player conduct did or did not violate a rule of the game. Judges interpret whether conduct did or did not violate a law or whether conduct did or did not violate a standard of care or whether conduct did or did not breach a contract.

In order for a judge to do his/her job, a judge must make rulings of law. However, the rulings must be within the context of the law or legal principle at issue. Judges interpret the law/principles as expressed by the legislature not as the judge would have done if he/she was in the legislature. Judicial decisions are to be made "without regard to persons" -- this means decisions are not to be based on who the litigants are but what the law dictates.

In the final analysis, judges must be independent and above the fray. It may sound like a simple proposition but it is not. I will address why this is the case in this series on "Judges and The Code of Judicial Conduct."

Thursday, May 6, 2010

Not only can judges keep up with colleagues and friends, past and present, via the social networks of facebook, twitter, MySpace, etc.; and not only can judges do research on the internet - via social networks and legal websites; judges can express their views to the world via blogging.

I decided to start this blog in December, 2009 after encouragement from my friend and court commissioner, Anne Willis Reed, and from my friend, Michael Horne - former reporter with the Milwaukee Sentinel and current operator of the website, MilwaukeeWorld. They both told me that most people do not truly understand the life of a judge -- what they do, how they do it, why they do what they do and the ethical constraints that limit what judges can say outside of the courtroom. While they do not know each other, Anne -- a lawyer (and now the Executive Director of the Wisconsin Humane Society in Milwaukee) and Michael -- a journalist were "united" in their opinion that I could help people better understand the role of a judge in the legal system. They convinced me to head out into the uncharted waters of cyberspace and now, five months and 101 blogs later, here I am.

While I am not alone in doing a "judge's" blog, as best I can tell from a survey I did of the Wisconsin Circuit Court and Wisconsin Court of Appeals judges, I am currently the only state judge in Wisconsin who does a "judge's" blog. (If there are others who did not respond to my survey, I apologize.)

I try to convey a "typical day in the life" of a judge via what I do. I also use this blog as a vehicle to address current and upcoming issues that judges face/will face and what we can do to head off problems that come with the issues. A good example of this has been my blogging about the problems that have arisen based on juror use of the internet and their personal social networking via the internet. On a daily basis, I am being directed to articles about the "juror and the internet" issue from people I follow on twitter and from my friends on facebook.

What I do not do is talk about specific cases before me. Under our Code of Judicial Conduct (SCR Chapter 60) we may not engage in ex parte communications about specific cases that we are handling. We do our talking about these cases on the record in open court. This is crucial in contributing to the fairness of the proceedings.

I am thoroughly enjoying my blogging experience and hope that other judges will join me in this terrific experience.

Tuesday, May 4, 2010

The vast "social network" (ie twitter, facebook, etc.) that is open to everyone is more that just a vehicle to socialize with friends, past and present. For judges, depending on who we friend or follow, it can provide a wealth of information that we can use in our everyday "judicial lives."

On twitter, I "follow" a number of individuals who post articles and papers on issues related to jury selection, jury service and trials. Dr. SunWolf -- "Jury Talk," Dr. Rita Handrich -- "The Jury Expert," Julie Campanini -- "trialinsights," Dr. Dennis Elias -- "Jury Vox," Online Legal News, Blawgreview, The Wisconsin Law Journal, and Anne Reed, my good friend and one of my court commissioners do a terrific job of providing fascinating and thought provoking information that I can and do use in my everyday work. Based on information I have gleaned from their work, I have modified my preliminary jury instruction regarding the "Conduct of Jurors" in order to stress the utmost importance that jurors selected for a case not engage in any efforts to secure information on their own to help them decide their case.

On facebook, I have a number of "friends" who post articles they have found dealing with legal issues that I have found helpful in my approach to my work. Judge Daniel Anderson, Judge Dennis Cimpl and Judge Richard Sankovitz have found fascinating articles from various and sundry newspapers (New York Times, Washington Post, Boston Globe, etc.) as well as legal websites such as law.com which provide information on issues that come up in court every day. Furthermore, these articles direct me to other sources for additional information.

The social networks that are open to all of us have their own "road" on the vast superhighway that is the internet. People that we judges friend and follow can provide us with "maps" to assist us in researching the challenging issues we confront on a daily basis.

Much has been written about judges being on Facebook, Twitter, etc. The ethics of judicial networking is an issue that has been written about and even addressed by the judicial commissions of some states. Some articles and opinions see no problem at all. Some articles and opinions advise caution by judges who want to be on the social networking bandwagon. Some articles and opinions, particularly an opinion from Florida, take the position that judges should not engage in it at all. So, what is a judge to do.

In Wisconsin, this issue has not yet been addressed. I am of the opinion that when it is -- and it will be addressed sooner than later -- that our Judicial Commission (JC) will take the position that judges may engage in internet social networking but must do so with care and caution. I believe that our JC will indicate that to the same extent that judges can have relationships with lawyers and the public in general in person that judges can do so via internet social networking.

This would be a reasonable approach since judges do live and breath in the real world. We do not live or work in ivory towers. Of course, we must be neutral. Of course, we must avoid not just the appearance of impropriety but actual impropriety in our interactions with others. However, we can maintain our ethical obligations and still engage in internet social networking.

I have both a Twitter and a Facebook account.

With respect to my Twitter account, I like to post interesting articles that I find in the New York Times, Washington Post and Milwaukee Journal Sentinel pertaining to how our government effectively or ineffectively addresses the issues of the day. I also like to follow legal consultants and jury consultants such as Jury Talk, trial insights, and The Jury Expert to see what is going on around the country with respect to jury related issues. I also use my Twitter account to post my blogs. It is a way to engage in the public. I do not discuss my cases, share my views on cases or solicit opinions regarding cases. I have a life on the bench and a life off the bench and I respect the line that divides them.

With respect to my Facebook account, I like to post sports articles and report what each day has in store for me -- generally but not "case specifically." On Facebook, I keep up on what other people think and feel about life around us and I participate in the social give and take of life. However, as with my Twitter account, I can and do keep separate my cases. I keep them in a "lockbox" of sorts since I do not want to know or solicit from others what they think about my cases. I should also point out that none of my friends have ever given me their thoughts or opinions about any of my cases. They know that there are lines that they too must not cross.